Delegating Authority, Dodging Responsibility

Amy, who writes one of the most prolific one-person blogs I know, calls down the Washington Post for inconsistency. The Post is concerned that the Patriot Act was written in vague language that allowed its actual content to be filled in primarily by the executive branch – which sounds an awful lot like a violation of the constitutional division of powers. But, Amy notes, the Patriot Act hardly breaks new ground in this respect, as virtually every federal regulatory agency works on the same template. To be consistent, the Post should also take issue with the enabling statutes that created the EPA, OSHA, FDA, etc.

One reason that Congress delegates legislative authority to the executive is, as Amy suggests, to allow for a greater expansion of state power. If Congress actually had to specify all the content of regulations, they just wouldn’t have the time to do as much regulating as they’d like. But I would argue that a more explanation of why Congress delegates its power is to finesse disagreements among its own members. Making trade-offs among disparate policy goals is hard work. Members of Congress would rather not make the trade-offs, especially since they will get blamed for any actual decisions they make – possibly losing votes and campaign money. So instead, they pass vague laws that claim to make satisfy everyone. Take, for example, the mandate created under the Emergency Petroleum Allocation Act (which I’ve taken from Gary C. Bryner’s book Bureaucratic Discretion):

[Issue regulations that] protected the public health, maintained public services and agricultural operations, preserved a sound and competitive petroleum industry, allocated crude oil to refiners to permit them to operate at full capacity, resulted in an equitable distribution of supplies to all parts of the country, promoted economic efficiency, and minimized economic distortion.

In short, deftly palm the coin. Why should Congress make any hard decisions, when they can tell someone else to do it for them? And then, if anyone complains, just blame the administrative agency in charge.